Geloo v. John Doe – The First Amendment and Modern Technology

Steven W. Bancroft, Esquire
Nicholas J. Lawrence, Esquire
July 1st, 2014
By: Steven W. Bancroft, Esquire and Nicholas J. Lawrence, Esquire

The courts are continuing to sort out how best to apply traditional legal rules and remedies to modern technologies like internet message boards. This week saw a first amendment issue in the Circuit Court for Fairfax County in Geloo v. John Doe et al, 2013-9646, and a fourth amendment decision by the United States Supreme Court in the case of Riley v. California, 573 U.S. _____ (2014). Riley required the Supreme Court to determine the extent to which the fourth amendment’s warrant requirement, which was drafted over two hundred years before the invention of the modern smart phone and internet, will apply to such modern technologies. The Supreme Court’s decision treats the vast amount of information on a modern smart phone like the “papers” known to the drafters of the Constitution, and according to the opinion, the search of the data on a modern cellular phone or smart phone will generally require a search warrant, just as a search of a person’s desk would have required a search warrant in the time of the founding fathers.

Recently, the Fairfax Circuit Court issued an opinion applying the January 2014 decision of the Court of Appeals of Virginia in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678 (2014) (see prior posts below for additional discussion). In the case of Geloo v. John Doe et al, 2013-9646, a plaintiff sought to serve a subpoena against Cox Communications to obtain the identity of persons who posted anonymous comments on an internet message board. The plaintiff was offended by comments that called her a “run of the mill court appointed attorney” and other things. The subpoena to identify the anonymous posters was opposed in part on the grounds that the anonymous comments were not actionable under Virginia law, and in a 13 page letter opinion the circuit court judge agreed that the comments were not actionable. See attached opinion of Judge Robert Smith of the Fairfax Circuit Court.

Like the Yelp case, the Geloo case and the Riley case demonstrate that the law is in many ways still catching up to the internet age. Internet users should remember that few things posted on the internet are truly anonymous, and the worldwide reach of the internet makes it possible for an ill-considered statement to spread “virally” in an astonishingly short period of time, and be nearly impossible to remove or retract. In addition, sarcasm and attempts at humor in an internet post or email can easily be misread or misrepresented to mean something other than what was intended, causing unintended harm and offense. Just as the 4th amendment’s warrant requirement for searches of “papers” is a good rule for the modern smart phone, the old rule that “if you don’t have anything nice to say, don’t say anything at all” remains sound legal advice in the age of internet chat rooms, message boards, and Facebook.

Read the Geloo v. John Doe Case No. 2013-9646 Opinion Letter.

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More